Everything Is Empirical
What is “empirical” legal scholarship? I think most people in the contemporary legal academy would respond that “empirical” work refers to the formal statistical analysis of data about law. Indeed, if you search the Googles for “empirical scholarship”,* you get all manner of links to workshops for learning how to analyze data about law using statistical methods as well as papers about and some criticism of this approach. This august site’s very own subcategory for “Empirical Analysis of Law” includes posts only about statistical analysis of law. And my quick, incomplete scan of the last CELS program yielded almost exclusively papers in this quantitative vein.
Something’s always struck me as a little strange about this use of “empirical.” The weirdness has nothing to do with the merits of statistical analysis of data relating to law (which I generally find, despite my not being conversant with it, really interesting). Rather, it’s a much narrower question about terminology, and in particular the tendency of the legal academy to refer only to statistical analysis of data as “empirical.” The term “empirical”, outside the legal academy at least, is not limited to quantitative studies of data using statistics. Rather, the term refers more broadly to reasoning that derives from observations about the world rather than from theoretical propositions (this roughly but inexactly tracks the distinction between inductive and deductive reasoning).
So while “empirical” work is undoubtedly empirical, so is (at least by the definition I’m using above) much legal scholarship that is not typically so described. I say more about this anomaly, and why it matters, below the fold.
Much scholarship that is empirical (though not commonly included within the contemporary mantle of “empirical” with respect to law scholarship) uses qualitative rather than quantitative methodology. My very own dean has interviewed lawyers from around the world as the basis for his work on international commercial arbitration. I recently wrote a paper about the extralegal regulation of roller derby pseudonyms using a similar methodology (I even called it an “empirical” paper in the abstract to see if I’d get any reaction to that—I didn’t). These papers may use words and text rather than numbers and graphs as their data, but they both start with observations about the world (as opposed to abstract theories) in order to induce general points, and in that sense neither is any more “empirical” than the other.
I once lobbed this idea at some colleagues who are also stats enthusiasts, and received (somewhat to my surprise) a basically positive reception. They suggested that legal scholarship could avoid any inaccuracy by simply calling work in this vein either quantitative or qualitative empirical work. And for a while this seemed like a pretty decent resolution.
Then I got to thinking that the qualitative/quantitative distinction does not sufficiently describe the universe of legal scholarship that is empirical. To take just one example, consider traditional legal scholarship that seeks to describe the doctrinal contours of some area of law. This kind of work starts with data from the world (cases and various state statutes relating to the law of X), and then seeks to draw general conclusions based on that data (the law of X has the following general qualities). So perhaps even enfolding qualitative work into the empirical universe understates the extent to which legal scholarship generally is strongly empirical.
Not all legal scholarship meets the definition of “empirical” I’ve been using in this post, though. A piece that starts with a theory about the way the world should be and then suggests how law should be changed to conform to that theory doesn’t seem empirical in this way (i.e., doesn’t use inductive reasoning, which may not be quite the same thing). Hence the title of this post may overclaim a bit (but I’m keeping it because it’s a reference to that book that came out some time ago that everyone said was good but that I never got around to reading).
One other answer to all this is, of course, so what? One might say that this is just a semantic point, and that since everyone knows that in law scholarship, “empirical” is a synonym for “quantitative,” there’s no confusion and hence no concern. For at least one reason, though, I think this is a distinction with a difference. “Empirical” is not just a neutral term that happens to describe a particular methodology. It may be understood to connote, rightly or not, a certain degree of rigorousness and exactitude that can set it apart from, and perhaps even above, other methodologies. And for that reason, to exclusively bestow on quantitative legal scholarship the title “empirical” may give it an unwarranted patina of credibility vis a vis other approaches that equally merit that description.
*Not a typo–merely asking Google to search for “empirical scholarship” produced pages of hits exclusively about empirical *legal* scholarship, which leads me to suspect that the terminological quirk I discuss in this post is limited to legal academia.